FPR r 27.10 incorporated a strong starting point or presumption, which should not be derogated from unless there was a compelling reason, that ancillary relief proceedings should be heard in private. The law concerning the presence of the media in such proceedings, contained in FPR r 27.11 and Practice Direction PD27B: Attendance of Media Representatives at Hearings in Family Proceedings, was to enable the press to be the eyes and ears of the public so as to ensure that the case was conducted fairly and to enable the public to be educated in an abstract and general way about the processes that were deployed, but did not extend to breaching the privacy of the parties in those proceedings that Parliament had given to them.

Mostyn J, sitting in the Family Division, so stated when dismissing the application by SL, the husband, for an adjournment and when making a reporting restrictions order and, the parties having reached terms of settlement, a consent order in ancillary relief proceedings which had started in January 2014. There had been up to 15 court orders made in the proceedings, the husband had filed no fewer than 18 witness statements and in the course of the case had made a number of ugly threats to the wife and her solicitors. His application for an adjournment on medical grounds had twice been refused but he had returned with a renewed application and an expanded medical report.

MOSTYN J said that there were some categories of court business which were so personal and private that in almost every case where anonymisation was sought the right to privacy would trump the right to unfettered freedom of expression. Ancillary relief proceedings were quintessentially private business and were therefore protected by the anonymity principle; the fact that the media might attend the hearing pursuant to FPR r 27.11 and PD27B did not alter the fact that the hearing was in private. That the proceedings were so protected was to be deduced from a number of sources: (1) FPR r 27.10 specifically provided that the proceedings should be heard in private. (2) The process involved the extraction of highly personal and private information under compulsion which the recipient might not use save for the purposes of the proceedings and the media might not report without leave: see Clibbery v Allen [2002] Fam 261. (3) Article 14 of the 1966 International Covenant on Civil and Political Rights, which stipulated that (a) the press or public could be excluded from all or part of the trial when the interest of the private lives of the parties so required and (b) that judgment was not required to be public where the proceedings concerned matrimonial disputes, created a presumption against public judgment in matrimonial disputes and therefore it logically followed that the proceedings should not be public, since otherwise the privacy of the judgment would be fatally undermined. (4) The Judicial Proceedings (Regulation of Reports) Act 1926 applied not merely to the suit for divorce itself but also to the proceedings for ancillary relief. Since its enactment the Act had been extended to cover proceedings for maintenance under section 27 of the Matrimonial Causes Act 1973 and its civil partnership equivalent, so that it would be bizarre if it applied to the now nearly obsolete form of maintenance proceedings that was section 27 but not to mainstream ancillary relief proceedings. Those considerations pointed powerfully to the categorisation of ancillary relief proceedings as private business entitling to the parties to anonymity as well as to preservation of the confidentiality of their financial affairs. No one had greater admiration for the wisdom and skill of Holman J but with great deference to him it was not possible to agree with his practice of ordering, pursuant to FPR r 27.10, that every ancillary relief case listed before him should be heard in open court. In Luckwell v Limata [2014] 2 FLR 168, para 3 he held that rule 27.10 did not contain any presumption that financial remedy proceedings should be heard in private and that it was no more than a starting point. On the contrary, rule 27.10 incorporated a strong starting point or presumption which should not be derogated from unless there was a compelling reason to do so. The present divergence of approach in the Family Division was very unhelpful and made the task of advising litigants very difficult. A party might well have a very good case but be simply unprepared to have it litigated in open court; the risk of having it heard in open court might force him or her to settle on unfair terms. The matter needed to be considered by the Court of Appeal and a common approach devised and promulgated.

Although the medical report appeared to meet the standards set out in Levy v Ellis-Carr [2012] EWHC 63 (Ch), para 36, that case made it clear that it was for the court to consider what weight should be attached to the medical opinion. Here every order had been challenged by the husband, most often by way of appeal or by an application for an adjournment; the case was almost preternaturally simple inasmuch as there were virtually no assets left and the husband (even if he was medically disadvantaged in the way that the letter suggested that he was) should be well able to deal with it. Moreover, it was apparent that he was a highly intelligent and articulate man who had every fact and every figure at his fingertips. In such circumstances it was not unfair for the matter to proceed.